…says ruling raises serious questions of governance, separation of powers

GOVERNMENT has signaled its intention to appeal the High Court ruling ordering the Attorney General to bring into force the Judicial Review Act, questioning whether the judiciary can govern even as it said that the decision presents a great opportunity for the Caribbean Court of Justice to answer serious questions of governance and the separation of powers.

Chief Justice Roxane George-Wiltshire on Monday ruled that Attorney General, Basil Williams’ failure to bring the act into force is unlawful and is in violation of the will of the people. In a statement issued by his chambers, Williams recalled that in December 2017, the PPP/C filed a High Court Action to compel him to commence the Judicial Review Act 2010. He said that five months later the High Court has ordered,by way of a mandamus, that he must bring the Judicial Review Act 2010 into force.

“The decision of the court raises some important questions regarding governance and the separation of powers between the executive arm of the government and the judiciary,” Williams said. He questioned whether the judiciary can govern and can the judiciary order the government to create law? Thirdly, he asked whether the judiciary can direct the current government to implement an Act that the PPP/C government deliberately failed to implement during its time in office.

Former Attorney-General and Minister of Legal Affairs Anil Nandlall, who had brought the action against Williams, said in his application to the court that he was aware that the said Act was not previously brought into operation by him. He said it was because there were no complementary procedural rules of the court to accompany the said Act, as the Rules of the High Court 1955 made no provisions for judicial review.

He argued that at that time, new Civil Procedure Rules were in draft form and these rules laid out the legal procedure in respect of how the court can be approached to access the remedies provided for in the Judicial Review Act. However, he said on the 5th day of February, 2017 a Practice Direction dated the 23rd day of January, 2017 and published on the 4th day of February, 2017 in the Official Gazette by the Honourable Chancellor (ag.) Mr. Justice Carl Singh directed that the Civil Procedure Rules 2016, shall take effect from the 6th day of February, 2017; the said Practice Direction also provided that the Civil Procedure Rules 2016 shall govern the practice and procedure of all civil proceedings filed in the High Court of the Supreme Court of Judicature after the 6th day of February, 2017.

EXPRESSION OF THE EXECUTIVE
However, Williams argued that the people of Guyana have vested power in the Cabinet as an expression of the Executive arm to govern and manage the affairs of the country. He said the judiciary has an equally important role to play to protect the rights of citizens but must exercise this responsibility with great care.

He quoted the President Elect of the Caribbean Court of Justice (CCJ) Justice Adrian Saunders, when sitting as First Instances in the Eastern Caribbean Case of Benjamin et al v. Ministry of Information et al, an unreported case from High Court of Anguilla, Suit No. 56 of 1997, decided on the 7th January, opined: “…our democracy rests on three fundamental pillars, the legislature, executive and judiciary. All must keep within the bounds of the Constitution. The judiciary has the task of seeing to it that legislative and executive actions do not stray outside those boundaries onto forbidden territory. If that occurs and a citizen withstanding complains, the court declares the trespass and grants appropriate remedies.

Within the constitutional parameters, the legislative and the executives are responsible for enacting and implementing such policy measures as they consider most appropriate for the people. The judiciary has to be careful that it too does not stray from its function and usurp the authority and role reserved for the other two pillars.”

Williams further stated that the Parliament vested the power upon the Minister as a member of the Executive arm of the Government to determine the commencement of the Judicial Review Act. “There has been no willful or malicious failure or refusal by the Attorney General to commence the Act as alleged in the case brought before the Court. The Attorney General is persuaded that an opportunity and consideration ought to be given to the Executive to set a reasonable date for the commencement of the Judicial Review Act, given that eight years have passed since the passage of the Act.

This would also allow the Cabinet the opportunity to engage in wide consultations with the Guyanese people before the Act is brought into law. This would ensure that improvements and amendments be made to cure existing lacunas in the current Judicial Review Act and to bring it in line with established regional and international best practices. Regrettably, the decision of the Court is premature as there has been no opportunity for consultation on the commencement of the Act,” the attorney general said.

PPP FAILURE
Williams contended that the facts are that the Judicial Review Act 2010 was assented to on November 2, 2010. He said the Parliament and parties in Parliament in 2010 agreed and provided in Section 1 of the Act that “the Judicial Review Act shall come into operation on a date appointed by order of the Minister”. “The PPP/C government up to May 2015 – five years after the passage of the Act refused to commence the Act.

The PPP/C refused to pass the Act to prevent the Opposition and litigants from making claims under the Act which would give them a wide range of reliefs, including compensation for damages.”

According to Williams the Judicial Review Act was not dependent upon the passing of the Civil Procedure Rules 2016 as argued before the court, and it does not negate the fact that the former attorney general refused to bring the very Act into law, which he now argues must be brought into law. Moreover, the reference to “rules of Court” in the Act contemplated rules that were already in force as there was already provision in the law for claims for judicial review.